The Trump Administration, COVID-19, and the Continuing Assault on the Rights of Asylum Seekers and Refugees

Since March 2020, thousands of immigrants detained in the United States (US) have fallen ill with COVID-19.¹ Held in cramped and unsafe conditions, they are often left without access to adequate medical care. Sixty people in bunk beds in one room. A communal bathroom. Time in the ‘hole’ – or solitary confinement – if sick. That is how one asylum-seeking client described the situation in May 2020. He had difficulty breathing, a racing heart, and other complications from a stab wound he had suffered before fleeing his home country. He described constant and debilitating body aches and pain. Despite repeated requests to see a doctor, he did not receive medical attention.

This client’s case is just one example of the disproportionate and devastating impact of the COVID-19 pandemic on immigrants in the US – and, as important, the Trump administration’s malicious response to it. While the Biden administration has begun dismantling some of Trump’s egregious anti-immigrant policies, many are still in effect. Thousands of immigrants remain detained in private, for-profit prisons, their lives at risk due to the pandemic.²

Lawsuits challenging immigration detention during COVID-19 have met with varying degrees of success across the country. One judge who heard this client’s case refused to order his release, convinced by the warden that social distancing was possible.³ A few months later, another judge granted his release.⁴ This piecemeal approach has left thousands of immigrants detained each day in the US at risk of contracting the virus.⁵

For asylum seekers who are not detained, circumstances are also dire. Many face significant barriers to obtaining medical treatment, collecting unemployment or other forms of financial assistance, and acquiring basic necessities, from food to toilet paper and nappies. Asylum seekers are often in jobs that place them at the greatest risk of contracting COVID-19.⁶ My clients work as aides to the elderly and sick, as childcare providers, as cleaners and landscapers, and in food services – professions that do not allow them to work from home.

Language barriers and fears of immigration enforcement have prevented many from seeking the medical care they so desperately need.⁷ A former client’s daughter called and texted frantically because her mother had a high fever for days and was unable to move. She was losing hope after trying unsuccessfully to treat her with home remedies since she could not reach her doctor. A community activist described pleading with an undocumented friend to call the 911 emergency number after she spent the night gasping for breath. COVID-19 has put into stark relief fundamental flaws in the safety net and systemic and structural racism which permeate access to health care in the US, with people of colour dying from the virus at disproportionately higher rates.⁸

Amid the pandemic, immigration court filings continue, as do hearings for detained immigrants, including unaccompanied children,⁹ and deportations.¹⁰ Calls by the national immigration judges union, prosecutors, lawyers,¹¹ and scholars,¹² alike, to shut the immigration courts and stop immigration enforcement,¹³ consistent with public health protocols, have thus far gone unheeded.

As part of its ongoing efforts to restrict immigration to the US,¹⁴ the Trump administration used the pandemic to close the borders with Canada and Mexico, with only limited exceptions for ‘essential travel’, such as delivery of food and medicines.¹⁵ An order issued in March 2020 by the Centers for Disease Control and Prevention (CDC) led to the immediate expulsion of asylum seekers and unaccompanied children who sought to enter the country without documentation from Mexico or Canada.¹⁶ In just two weeks following the order, US Customs and Border Protection summarily deported about 10,000 people to Mexico.¹⁷

The CDC Order and accompanying rule¹⁸ rely on an arcane section of the 1944 Public Health Service Act, authorizing the Surgeon General to suspend ‘introduction of persons’ into the US on public health grounds.¹⁹ The order purports ‘to protect the public health from an increase in the serious danger of the introduction of Coronavirus Disease 2019 (COVID–19)’.²⁰

In reality, the CDC Order and emergency Department of Health and Human Services rule were merely another unlawful gambit in the Trump administration’s attempts to eviscerate asylum protection.²¹ The order built, for example, on the unlawful²² Migrant Protection Protocols,²³ informally known as the Remain in Mexico policy, through which the US forced thousands of asylum seekers to wait in Mexico for their day in US immigration court.²⁴ Although the Biden administration announced a suspension of the Remain in Mexico policy in January 2021, an estimated 25,000 people are still forced to wait in desperate conditions in Mexico,²⁵ with the US admitting only small numbers of people each day.²⁶

Mass expulsions pursuant to the CDC Order continue at the same rate as under Trump, while the Biden administration reviews the procedures.²⁷ Yet, these summary expulsions fly in the face of the non-refoulement obligation under the 1980 Refugee Act, which codified into US law the international legal duties contained in the 1951 Refugee Convention and its 1967 Protocol. The statute and treaties both require that the US not return individuals to countries where their lives or freedom would be threatened on account of their race, religion, nationality, political opinion or membership in a particular social group.

Moreover, despite the Trump administration’s misguided efforts to declare otherwise,²⁸ US law specifically provides that people can apply for asylum if they are ‘physically present’ in the US, ‘whether or not [they arrived] at a designated port of arrival … irrespective of [their] status’.²⁹ Advocates,³⁰ including the Harvard Immigration and Refugee Clinical Program, where I work,³¹ have called for a halt to these expulsions in light of US obligations under both domestic and international law to provide protection to people who fear return to persecution or torture.

You would be forgiven if you wondered how the Trump administration found time to pursue so many dehumanizing and deadly policies even as the US led the world in both confirmed cases of COVID-19 and total number of deaths. Failure to develop robust testing and contact-tracing measures freed up a lot of time. Meanwhile, our clients continue to fight for their lives.

The Trump administration’s constant barrage of anti-immigrant rhetoric, and rollback of asylum seekers’ rights during COVID-19, was immoral and illegal. We need to protect the rights of the world’s most vulnerable people during this pandemic, not use the pandemic as an excuse to trample on them.

Original Kaldor Centre blog post 11 May 2020; updated 15 March 2021